## TEE A’ITORNEY GENE-I. OP !BJExAs

Aprll2,19))9

Eon. PearceJohnson,Cbairmsn opinionRo.v-801 Committeeon StateAffairs Howe ofRepesentatlves Re:.LegisfstlPeeuthorlty Auscln,Texas toenactS.B/Ro. 87, relating to lssuauce ofbondsbyRobertson Dear Sir: County tofund outTs standingscrip.

We haverecefvedyour letterofMarch 18, 199, which Isquoted, Inwt, as follows:

.~. ,~. ?he Comltt88 qu6StiOn8dbhenecessityOf thebill, andmoved that itbe sentto~theAt

### torneyCteneralfora report8s towhether or
.~ not thwblll'vas neoessary. In othervords, are 

### ve giViI@ 8UthOId.ty t0do SOIIWthiIIg

that Isalready~

permitted?"

We arenot Ina posltlontoansweryour questionas to vhether thlsbill is 

### necessary. That IS8 factqUeStionwhich goes to themerits of thebill ratherthan Itsvalldlty. It Isassumed thatyouwish toknovvhether theproposedbill Is constltutloual,and, ifso,whether Itaccomplishessomething notalreadypro9ldedfor in 8XiStlUgStatutes.

Thepropodedbill lsa special l.av dealing onlywith RobertsonCounty. InSection 1 thereoftheCom~Issloaers~ Court Isgiven authority to Issuerefundlogbonds torefund 

### roadandbridge sarlpvarrants of thecountyvblahare outst8ndlngon the effectivedat8 oftheeat,with thepvovlso, .hovever,thatnotmore than $88,000ofreiundlngbonds shall be issuedunder theterms of thesat.

Seatlon2relcrtestothematuritydates, Interest rates,snd exeautlonof thebonds,snd pwovldesthatnonotloeof Intentionto Issuether?fundlngbonds shallbe required.Hon. Pearce Johnson - Page 2 (v-801)

Section 3makes appliCabl8 to such refunding bonds the provisions of Articles 709 to 715, inclusive, Revised Civil Statutes, relating to approval of the bonds by the Attorney ffeneraland reglstrstion thereof by the Comptrol

### ler.

Section 4 provides that 811 SCrip 

### Varll8IItSOUtStandIng Of th8 8ff8OtiV8 d8t8 Of th8 aCt ar8 V8ltidsted.

SeCtiOn 5 is the usual emergency Ol.aUSe.

& examination of the caption reveals that it fully describes th8 provlslons of the act, and is sufficient, ass-Q3 fof oourse, that the act itself is constitutional.

Section !56of Article III, Constitution of Texas, prohibits the enactment of local or special lavs'vhich, among other things, regulate the ,affairsof counties, or which authorize the laying out, opening, altering or,malntaining of roads, highways, streets or alleys. This wohlbltion applies to all local and special laws "except as otherwise provided in this Constitution."

It Is evident that this positive inhibition would preclude the valid enactment of the bill under conslderatlon unless 8Uthoritg therefor is found elsewhere ltithe Constitution. Section 9 Of &tic18 VIII Of the COnStitution relates to certain county taxes, among which is the tax for road and bridge purposes. This section provides, in part, as follows:

"And the L8gislAtUr8 may pass LOoal laWi for the maintenance of the public roads snd high- * ways, without th8 local notice required for special or local laws."

If the proposed act in question comes within the pUrVi8W of th8 above-quoted prOViSiOn, then 1tS 8nWtm8nt is~not prohibited by Section 56 of Article III. In the
case of Henderson County v. Allred, 120 T. 483, 40 S. W. (26) 17, th8 Supreme Court had for conslderatlon the V8- lldlty of a special road law enacted for Henderson County,Hon. Pearce Johnson - Page 3 (v-801)

similar to the proposed law under consideration. We quote from the opinion of the court as follows:

"The act in ques.tionis a local or special road law enacted'for Henderson county without local notice having been given. Under its terms the commissioners' court of Henderson county was authorized to fund into bonds of the county such of Lts legal indebtedness chargeable against the road and bridge fund.
as existed January 1, 1929, which might be represented by script or time warrants. It was also provided in said act that such fundlnq bonds might be issued without the necessity of submitting the question of their issuance to a Vote of t'hepeople of the county.
I,

. . .
"Nor can the contention that the passage of th8 local or special road law for Henderson coun.tyis prohibited by the 

### terms of section 56, article 3, of the Constitution, be sustained. This section of the Constitution provides: 'The legislature shall not, except as otherwise provided in this constitution, pass any local or special law: * * * authorizing the laying out, open:inq,altering or nmintalnlng of roads, highways, streets or alleys.'

"The above provision is a part of the oriqlnal Constitution of 1876. Its terms operated to prohibit the Legislature without proper notice having been given from enacting any.local Jr special law in regard to public roads from the date of Its adoption in 1876 until December 19, 1290. On the latter date, however, section Q of article 8was amended. 

### The amendatory portion of this article contained the following;clause: 'And the legislsture may pass local laws for the maintenance of the public roads and hiqhways',without the local notice required for special or local laws.' .Hon. Pearce Johnson - page 4 (v-801)

“OnJ8nuarg 7, 1907, S8CtiOn 9Was ag8fn amended by changing ~ltsformer terms, but the above provision with reference to the passage of 1OC81 or SpeCi8l road 1aWS was re-8n8Oted in the Identical language in which itwas originally adopted.

"From the above-quoted prOViSiOnS of the Constitution, it will be readily seen that local or special road laws are expressly exempted from the operation of the ~OPiSiOnS of section 56, article 3. The power of the Legislature to enact such local 

### or special laws without the required notice is there& fore placed beyond OaVil.
11

. . .

11

. . . If the Legislature pos'sessedthe power to control by 10~81 or special laWS the laying out, construction, and maintenance of public roads in Henderson county, which cannot be doubted under the foregoing decisions, then it must necessarily follow that it has the power to control and regulate by such a law the expenditure of all funds used for such purposes. Undoubtedly, the Legislature might lawfully, by local law, have made provision for the issuance by the county of the warrants and script which it has now authorized to be funded Into negotiable bonds. The power to authorize the creation of-suchindebtedness and to provide the form Inwhich It shall be 8vid8no8d necessarily includes the power to authorize a change in the form thereof.

11

. . . Indisputably the Legislature had the power to authorize Henderson county by loCal or special law to issue warrants or bonds 8S 8
means of obtaining funds to be used in the bulldlng and operation of its road system without submitting the question as to the issuanc8 thereof

,Hon. Pearce Johnson - Page 5 (v-801)

to a vote of the people of the county. This being true, it logically follows that, Where
an indebtedness has been lawfully incurred for road purposes by Henderson county and its obligations iSSU8d therefor in the form of script and warrants, that the Legislature may validly authorize the county to change su.ch form of indebtedness by funding the same into the negotiable bonds of the county."

It Is clear under this decision that Sectlons~1, 2, and 

### 3 of proposed Senate Bill No. @ constitute a valid exercise of legislative power, assuming that the scrip warrants were validly issued.

Section 4 of the act provides that all scrip warrants outstanding on th8 effective date of the act are validated. It has been held time and agsin that the enactment of curative statutes constitutes a valid exercise of legislative power, snd that the Legislature can ratify anything that it could have authorized in,the first lnstance. Tom Green County v. Moody, 

### 116T..299,289's.W. 381; Hunt v. Atkinson (Corn. App.), 

### 18S.W. (2d) 594; 39 Tex. Jur. 41.

It is clear that the Legislature has the power to Validate any action that it could have authorized in the ?irst instance; hOWeVer, It does not have the power to ra,tifgany a& 

### which is prohibited under our constitution. In the case ofBigfoot Independent School Dist. v. Genard, 

### x16s.W. (2d) 

### 804,affirmed 129 9. W. (2d) 1213, the court held as follows:

II

. . . It is conceded, and is obvious, that the Legislature has no power to validate an act which It did not have the power to authorize in the first instance; it cannot ratify an act it Gannet authorize. Here, the Constitution prohibited the imposition and levy of a tax upon the property embraced in an independent school district except whenHon. Peame Johnson - Page 6 (v-801)

authorized by a majority of the taxpaying voters of the district at 

### an election held for that purpose. The Legislature had no inherent or granted power to dispense with that aonstitutional requirement and authorize the trustee of the district tomake such levy until the voters had acted favorably thereon, and not having the power to authorize the act in the first instance, it had no power to ratify or validate~it after itwas committed without authority. 2 Cooleyta Conat. Lim., 8th Ed. 791; 39 Tex. Jur. p. 41, % 19; Tom Green County v. Moody, II6 Tex. 299, 289 9. W. 381."

Thus, Section 4 would have the effect of validating the scrip warrants of the cow&g insofar as nonconstitutional objec~tlonsare concerned. If there were certain errors or~om1asions in the issuance of the warrants, but these were statutory objections and not constitutional objections, then after the act would beoome effective,-such errors and omissions would become imma: ,. terial. For example, The Bond and Warrant L&w (Artiale 2368a, V. C. 3.) prohibits the commissioners* court from making any contract calling for the expenditure of $2;000.00 or more of any county funds without first sub-~ mitting the contract to competitive bids. Advertisement has tobe made, and the successful bidder must give a performance bond. These steps are required by statute, and not by the Constitution. If the steps are not taken, then under the statute the contract is void. However, the Legislature may enact a validation statute which would dispense with these'objections.

We have said above that the Legislature does not have the power to validate an unconstitutional act. It is too well settled to require citation of authority that scrip warrants are payable out of aurrent revenues, and that to constitute valid obligations they must be within the reasonably ancitipated revenues of the oounty for the year in which they were issued. Otherwise, they would beHon. Pearce Johnson - Page 7 (v-801)

unconstitutional under 

### Section7 of Article XI, Constitution of Texas. This section prohibits cities and counties from incurrinS,a debt unless at the time of the creation thereof provision is made for the levy and collection of a sufficient tax to pay the same. Unless scrip warrants are within the reasonably contemplated
revenues of the county, they would constitute debts within the prohibition of Section 7, and, as no tax is levied therefor, would be unconstitutional obligations. See 11 Tex. Jur. 670 and authorities cited therein,

Thus, Section 4 'ofthe act, if It is enacted, I would have the effect of validating the scrip warrants
as to non-constitutlona1 objections. It could not validate any scrip warrants which are unconstitutional.

You ask whether the act accomplishes~something not already provided for in existing statutes. 1~ the first place, as we have already pointed out, the act contains a validation provision. In the second place, although validly issued scrip warrants may be funded into bonds under Article 2368a, supa, 3ection7 of the statute requires published notice of intention to issue such bonds and authorizes the filing of a referendum 

### petition. Section 2 of the proposed act provides that "no notice of lntentlon to issue such refunding bonds shall be required~."

SUMMARY

Proposed Senate Bill No. 87, a special road law for Robertson County which authorizes the issuance of bonds to refund certain scrip warrants of the county without the necessity of a notice of intention to issue such bonds, If enacted in the form~submitted to this der‘artment,would begconstitutional.

Section 4 of the act, which validates such scrip warrants, would have the effect of curing objections to

### thewarrantswhichwerenot constitutionalinnature,

but couldnotvalUla%emy unconstitutionalwarrants.

Very trulyyours
ATTORREYGIENERALOFTEXA3 

# Bib-t-$+w.f+

Oe geW. Spar w

Assistant - 

## m-s-8

APPROVED: Ron. PearceJohnson -Page8 (v-801)